Supreme Court To Decide If 14th Amendment Says What It Says

The textualists wouldn't dare ignore the plain text, right?

You know what they say: If at first you don’t succeed (in convincing the Supreme Court that your bigoted, nativist, xenophobic interpretation of the Citizenship Clause in the 14th Amendment is the correct one despite a century and a half of scholarship that refutes you), try, try again!

Today, the Supreme Court will hear arguments in Trump v. Barbara, a challenge to an Executive Order that Trump signed on his first day back in office a year ago. That order was intended to end birthright citizenship, arguing that the Citizenship Clause (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”) was only intended to apply to former slaves and their immediate offspring. Anyone born here to a noncitizen or someone only temporarily in the country should be considered a foreign alien.

This interpretation was a fringe belief in the legal community for a long time. The last time anyone took a serious run at making this argument was the 1898 case of United States v. Wong Kim Ark, in which a man born to Chinese immigrants in San Francisco was deemed an American citizen, with all the rights and protections that any white people get.

There is no more eternal American debate than gauging the acceptable degree of legalized racism in our society. Some people say there should be none at all. Other people are the Trump administration and its various ideological bootlickers.

But that’s the fun of Trump’s America. Bigots and morons who have been held at bay for decades now have the friendliest ear they have had in the White House since probably Ronald Reagan. And thanks to those bigots and morons, the arguments made at the Supreme Court this week will be based on the ramblings of former Confederates who made the same claims in 1898 and were rejected then.

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One of those former Confederates was Alexander Porter Morse, who had been an officer in the army during the war. In 1896, Morse was one of the attorneys in Plessy v. Ferguson, which established the “separate but equal” doctrine that formed the backbone upon which Jim Crow laws were built.

To get a sense of just how bad this citizenship argument is, consider that the Court that wrote the Plessy decision in 1896 was the same one that wrote the Wong Kim Ark decision two years later. This was a Court that was 100 percent primed to codify racism into American law, and even it couldn’t justify mooting the 14th Amendment for non-white people.

From The Washington Post:

CALDA also argues in a friend-of-the-court brief that the Trump administration “recycles” arguments by Morse, Wharton and Collins. It points out 19 instances in which the government’s brief cites the same treatises, cases, laws and legislative history as the Collins and government briefs in the Wong Kim Ark case.

Why would we take seriously the arguments of people who were opposed to the 14th Amendment when it was written almost 160 years ago and never got over it?

Perhaps the bigots and morons of today figure the Civil War was a recent enough memory in 1898 that the sitting justices then had a sense of shame informed by it. They are betting that now there are at least five current justices who lack any sense of shame. And anyone familiar with the careers of Sam Alito and Clarence Thomas can tell you it might not be the worst bet.

Trump ranted about the whole case on Monday, depositing the stream of rat diarrhea that make up his “thoughts” in the usual repository, TruthSocial:

How this “FOR PAY” part comports with Trump’s literally selling visas is beyond us. But then, so is everything else about this presidency.

What would be the consequences of the bigots winning this upcoming case? For starters, anyone born in America to noncitizen parents would suddenly find themselves stripped of citizenship. Garrett Epps in Washington Monthly says this would result in the creation of a “foreign labor class” that can be easily exploited. Or at least more easily than migrant workers are sometimes exploited now. Plus, the size of that class would suddenly be enormous:

If American-born children are not U.S. citizens, where would we deport them? Children born in this country aren’t automatically citizens of some other country. They are likely to be stateless. Even if the U.S. wished to deport them, other countries would be unlikely to take them. [...] The evidence suggests that the Trump project has never been about deportation but about keeping noncitizens working for “real” Americans.

Epps thinks that Stephen Miller and his ilk don’t actually want to deport these suddenly stateless people. We disagree with this — Miller has never met a brown face he wouldn’t like to put on a plane and ship to Honduras or Mozambique — but you can see the case for his argument. Suddenly this country would have literally tens of millions of people whose Social Security numbers are no longer valid, who have lost all the rights they previously enjoyed, and who would have nowhere to go.

And since any of the suddenly stateless would only be able to have kids who are also not citizens, we’d have a permanent “hereditary underclass” of desperate people with no rights. This strikes us as something that would be bad for the long-term health of the nation, but we’re not the geniuses who lost the Civil War.

[White House / WaPo / Washington Monthly]

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